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That Poll Does Not Mean What You Think It Means


John and Ezra are, of course, right: despite the claims of people like Jeff Goldstein, the fact that only 64% or the public answers “yes” to a question that I (and virtually everyone else) would unhesitatingly answer yes to is hardly a sign of strength for the President’s position; if they ask about the President’s program as opposed to the concept of using wiretaps to fight terrorism in general, then we’ll have something. In addition to this, of course, we get the usual projection of intense partisanship onto others. He asks: “Will these results convince partisan Democrats who’’ve been pushing the story that they’’re not likely to gain much politically by pressing the issue?” The answer, of course, is “who gives a shit?” Let’s say for the sake of argument that opposing the President’s program will be unpopular–quite likely, although this particular poll is neither here nor there as far as that’s concerned. I could still care less. If it’s unpopular to oppose presidential illegality and pointless violations of civil liberties, so be it. There are some principles you have to stand on; if some people believe that narrow partisanship is more important than upholding the Constitution that’s their privilege, but speak for yourself.

As for the claim that “case law to this point supports that authority”, uh, sadly, no. We have to start with the fact that the program clearly violates the FISA statute. We need not concern ourselves with the few embarrassingly specious and outcome-oriented attempts to argue otherwise, because not even the administration itself is claiming that their wiretaps were authorized by FISA. And the claim that the taps were somehow authorized by the AUMF is, if anything, even more unserious. So, the question is: does the case law support an inherent presidential authority to engage in national security protections contrary to Congressional statutes? Let’s turn this over to Daniel Farber’s Lincoln’s Constitution, an (excellent) attempt to defend the constitutionality of most of Lincoln’s wartime measures:

With the possible exception of Midwest Oil, where the court found in a long history of prior congressional acquiescence, the Supreme Court has never upheld a presidential claim to take emergency action in violation of statute. At the very least, any such claim of presidential authority must be scrutinized with great caution…On balance, Lincoln’s transfers of federal funds are probably best regarded as unconstitutional. (137)

In this case, Midwest Oil is also clearly inapplicable; not only has Congress not provided long-term tacit consent, but the Attorney General has argued that the program is necessary precisely because Congress wouldn’t grant the authority. And as Glenn recently pointed out, in the Steel Seizure cases the Court refused to uphold Truman’s actions even though 1)there actually was a war as traditionally understood going on, and 2)the steel seizure represented a far more plausible “emergency” context than warrantless wiretaps in December 2005. If Truman didn’t have the inherent authority to override the will of Congress, Bush certainly doesn’t. So, the case law on this question is indeed clear: the President plainly exceeded his constitutional authority. The program would only be constitutional if the Court were to expand traditional understandings of executive power considerably. For the good of the country, we can only hope that they won’t.

Digby gets it right.

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